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When the Europeans first blundered into the Americas, they found a land that was already occupied and developed. In 1532, Spanish judge Francisco de Vitoria declared that non-Christians could own property and therefore Indians may have title to their land. After the creation of the United States at the end of the eighteenth century, the issue of the ownership of Indian lands continued to be debated in the court system.

Background:

The English adopted the concept of vacuum domicilium which meant that if they felt that the lands were “vacant”—lacking land development (meaning fenced fields) and permanent structures (meaning English-style buildings)—then they could be occupied and possessed without any concern for actual Indian ownership or use of the land. From the English viewpoint, only land that is tilled, fenced, and built upon was owned.

In listing the legal fictions that form the basis of American law regarding American Indians, attorney Walter Echo-Hawk, in his book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, includes these:

Native land is wasteland or a savage wilderness that no one owns, uses, or wants and is available for the taking by colonists—therefore any aboriginal interests in the land are extinguished as soon as British subjects settle the area.

Native peoples have no concept of property, do not claim any property rights, or are incapable of owning land.

Christians have a right to take land from non-Christians because heathens lack property rights.

There is an assumption that the European use of the land had a higher value than Native use. Anthropologist Samuel Wilson, in his book The Emperor’s Giraffe and Other Stories of Cultures in Contact, reports:

“The idea that Europeans might put the land to higher use required downplaying how the native people were using it.”

Since the Natives were already farming the land, particularly the best land, this meant that the English had to construct stereotypes of the Indians which portrayed them as nomadic hunters who did not modify or improve the land.

One of the common misconceptions is that Indian nations had no concept of land ownership at this time. Law professor Rebecca Tsosie, in her chapter in American Indian Nations: Yesterday, Today, and Tomorrow, writes:

“While it is true that no Native people employed the concept of ‘fee simple’ or maintained written land titles prior to the arrival of the Europeans, there is a rich tradition of ‘rights’ and ‘responsibilities’ that accompanies Native narratives about the land. In the broader sense of ‘ownership,’ Native peoples most definitely maintained political and cultural claims to their ancestral lands.”

Preparing the Lawsuit:

In 1763, the British Crown had issued a decree which prohibited non-Indian settlement west of the Appalachians. Ignoring this decree, many Americans, including George Washington, had speculated in land in the western region. While British law held that these land purchases were illegal, after the formation of the United States questions about legal titles were clouded. Did Indians and/or Indian nations have the right to sell their land to speculators, or did the United States now own this land and Indians simply held an occupancy right?

Attorney Robert Goodloe Harper set out to clarify the land speculators’ title through the court system. To do this he contrived a controversy which he could bring to the Supreme Court. Walter Echo-Hawk reports:

“First, he selected all of the players in the lawsuit—not only the plaintiff, who Harper would represent, but he also hand-picked the defendant and hired the defendant’s attorneys who were paid by the land companies and told what to do throughout the litigation.”

Thomas Johnson was selected as plaintiff because of his close ties to people admired by Supreme Court Chief Justice Marshall. The defendant—called “pretend defendant” by Walter Echo-Hawk—was William McIntosh (M’Intosh). Walter Echo-Hawk writes:

“M’Intosh was picked because of his willingness to collude and play ball with the law.”

With regard to arguing the case before the Supreme Court, Walter Echo-Hawk writes:

“Harper selected the great Daniel Webster—the most eloquent and powerful orator of the day—as his co-counsel to assist in arguing the case on behalf of Johnson, and then he picked less-qualified attorneys to argue M’Intosh’s case, paid them, and told them what to say.”

The Lawsuit:

Before the Supreme Court, Harper and his team argued that any British prohibition of land sales had been invalid as the Indian tribes owned the land. McIntosh’s attorneys, coached by Harper, argued only that land sales had been barred by British law.

While this case involved American Indians and its outcome would impact the lives of Indian people for the next two centuries, there were no Indians in the courtroom and it is doubtful that any Indians even knew it was being argued. Harper described Indians as “savage tribes” and the attorneys for McIntosh saw them as “an inferior race of people, without the privileges of citizens.”

Walter Echo-Hawk writes:

“Everyone’s use of racial invectives in Johnson leaves us to ponder the Court’s ability to render an impartial decision concerning Indian land rights. The avowed racist views expressed by the Court and the parties assured that those rights would not be represented.”

In the 1823 decision Johnson and Graham’s Lessee versus McIntosh the Supreme Court declared that the United States has the power to extinguish the Indian right of occupancy and that absolute ultimate ownership of the land lies with the United States. The case involved valid title to the land: Johnson claimed that title comes from the Piankshaw while McIntosh claimed that title comes from the federal government. In his book Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, law professor Lindsay Robertson reports:

“The indigenous owners were converted into tenants on their lands and denied the right to sell their ‘leases’ on the open market.”

Law professor Bruce Duthu, in his book American Indians and the Law, writes:

“The case required a ruling on the nature of Indian property interests to determine which of the non-Indian parties held superior title to the lands in dispute.”

The Court found that the Discovery Doctrine gave sovereignty to England and then to the United States. Indian tribes, under this Doctrine, have a right of occupancy to the land. Christian nations, such as England and the United States, have superior rights over the inferior culture and inferior religion of the Indians. In reviewing the long history of land claims, Chief Justice John Marshall wrote:

“It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned.”

According to the Court:

“The tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness.”

Indians, found the Court, had been compensated for their lands by having Christianity and civilization bestowed upon them.

With regard to the sovereignty of Indian nations, the Court declared:

“They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.”

In their book Tribes, Treaties, and Constitutional Tribulations, legal historians Vine Deloria and David Wilkins summarize McIntosh this way:

“the culture and religions of indigenous peoples was judged inferior to that of Europeans, civilization and Christianity were offered them as compensation for their lands, discovery gave title to a government against other Europeans, the Indians were still the rightful owners of the land, but their sovereignty was reduced by the European agreement to restrict the sale of land to the discovering country.”

Steven Newcomb, Director of the Indigenous Law Institute, in a column in Indian Country Today, writes of the legal doctrine expressed in McIntosh:

“Based on this bizarre theory, our very existence as Indians is now assumed to be subordinate to, ruled by, and possessed as property by, the political and legal successor of the first Christian ‘discoverers,’ namely, the United States.”

Newcomb also writes:

“From the perspective of Western Christendom, it was the ‘god-given’ right of all Christian sovereigns to locate and dominate (“possess”) all non-Christian lands on the planet.”

Richard West and Kevin Gover, in an article in The Impact of Indian History on the Teaching of United States History, see Justice Marshall’s decision as practical:

“The title of every landowner in the country would have been clouded had the Court failed to acknowledge the discovery doctrine.”

With regard to the importance of McIntosh, attorney Glenn Morris, in a column in Indian Country Today, writes:

“Johnson v. M’Intosh is the opinion upon which the entirety of federal Indian law (and U.S. property law) is constructed. Every destructive opinion by the Supreme Court, every destructive policy of Congress or the president to this day, is made possible because of Johnson v. M’Intosh.”

The United States has never been particularly comfortable with the idea of Indian nations and Indian people within its territorial boundaries. Like the British before them, the United States viewed Indians as impediments to “progress” who needed to be removed to make way for non-Indian economic development. At the beginning of the nineteenth century, President Thomas Jefferson recommended that all Indians be removed from the United States and given reservations west of the Mississippi River. In 1830, this recommendation was translated into reality with the passage of the Indian Removal Act. In Georgia, the greed for Cherokee land, coupled with racism, resulted in the execution of Corn Tassel, a Cherokee man.

What Came Before:

In 1827, the state of Georgia passed a series of resolutions to take control of Indian lands within the state. The resolutions insisted that the Cherokee had no legitimate claims to land within the state and declared that Georgia law was to apply to the Cherokee. Theda Perdue and Michael Green, in their book The Columbia Guide to American Indians of the Southeast, report:

“Denouncing the Cherokee constitution as outrageous and claiming that the establishment of a sovereign Cherokee republic was unconstitutional, the legislature announced that Georgia had sovereignty over all the lands within its boundaries and asserted that it could take possession of the country occupied by Indians whenever and by whatever means it pleased.”

Georgia denied the validity of treaties with the United States that recognized tribal sovereignty and land rights. Georgia also demanded that the federal government honor the Compact of 1802 and remove the Cherokee from Georgia.

President Adams warned Georgia that these actions violated the treaties between the United States and the Indians. Furthermore, the United States, according to the President, would use military force to uphold these treaties. In response, Georgia called up its militia and occupied some Creek towns. The federal government backed down from any confrontation.

In 1828, the Georgia House of Representatives passed a resolution requesting the governor to ask the president of the United States to remove all Indians from the state.

In 1828, the state of Georgia also adopted legislation which extended state control over all Cherokee lands within the state. The new legislation declared all Cherokee laws to be null and void and prohibited Indians from testifying against non-Indians. As a result, groups of non-Indians invaded Cherokee country, taking Cherokee cattle and horses, assaulting those who resisted, and taking possession of Cherokee homes. According to the law, all Cherokee were to leave the state by 1830 unless they were given permission to stay by the Georgia legislature.

The following year, the state of Georgia enacted legislation which declared

“that no Indian or descendant of an Indian residing within the Creek or Cherokee nations of Indians, shall be deemed a competent witness in any court of this state to which a white person may be a party.”

Anthropologist Charles Hudson, in his book The Southeastern Indians, describes the result:

“In effect, this gave the whites – any white – a license to steal and do mayhem.”

In preparation for removal, President Andrew Jackson in 1830 ordered federal troops to be withdrawn from Cherokee lands in Georgia, leaving the Cherokee at the mercy of state residents at the time when Georgia was surveying the lands to open them for non-Indian settlement. At this same time, the Georgia Guard was created. Walter Echo-Hawk, in his book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, reports:

“To enforce Georgia’s growing body of anti-Cherokee laws, a special paramilitary force was created—the infamous Georgia Guard. Its mission was to enforce state law within the Cherokee Nation, arrest violators, ‘protect’ Cherokee gold mines, and otherwise harass and intimidate the Indians.”

In a report for the Niles Weekly Register, Colonel Gold (whose daughter was married to Elias Boudinot, the editor of the Cherokee Phoenix) reported that the Cherokee afford

“strong evidence that the wandering Indian has been converted into the industrious husbandman; and the tomahawk and rifle are exchanging for the plough, the hoe, the wheel, and the loom, and that they are rapidly acquiring domestic habits, and attaining a degree of civilization that was entirely unexpected, from the natural disposition of these children of the forest.”

The Cherokee National Council met in New Echota even though state law forbade it. The council unanimously adopted resolutions protesting removal.

The Cherokee sent a delegation to Washington, D.C. to present their grievances against the state of Georgia. The delegation included Richard Taylor, John Ridge, and William Shorey Coodey. In Washington, however, the Secretary of War refused to recognize them as a legally constituted delegation as they had not come with authority to discuss a removal treaty.

In Washington, D.C. President Andrew Jackson delivered a special message to the Senate. In his book Indian Removal: The Emigration of the Five Civilized Tribes, Grant Foreman reports:

“He frankly announced himself as the champion of Georgia in her controversy with the Indians and as frankly disclaimed any intention to enforce the treaties made by the government with these Indians for their protection, wherein they conflicted with the pretensions of Georgia.”

In 1830, the Georgia state governor issued a proclamation prohibiting Indians from taking any more gold from their lands. According to the proclamation, the state had the right to all gold and silver found on Indian lands.

Corn Tassel:

To deal with the state of Georgia, Cherokee chief John Ross hired the Georgia law firm of Underwood and Harris and the Baltimore law firm of William Wirt. Wirt was a former attorney general and was described as “the country’s greatest expert in Indian law.” Wirt urged the Cherokee to file a case which would test their rights in the Supreme Court.

The test case involved Corn Tassel (Corn Tassels) who killed another Indian on Cherokee land. In spite of Cherokee jurisdiction, Corn Tassel was tried in a County Superior Court, found guilty, and sentenced to hang. Attorney Walter Echo-Hawk reports:

“He was prosecuted under a set of state laws enacted to harass, intimidate, and drive the Cherokee Nation out of Georgia. The Georgians wanted Cherokee land. And they wanted the Cherokee to leave.”

The case was appealed and a panel of state judges found that the state had full criminal and civil jurisdiction over the Indian tribes within their boundaries. Furthermore, the panel found that the British prior to the American Revolution had held title to the land by right of discovery. In the appeal, the Cherokee argued that the extension of Georgia laws over the Cherokee was unconstitutional as this violated the Treaty of Hopewell which was the supreme law of the land. The state, on the other hand, asserted that the treaty was void because the federal government had no right to treat with Indians within the limits of the state. According to the state, the Cherokee held no political or property rights and that Indian tribes were inferior. Walter Echo-Hawk reports:

“Their Tassels opinion espoused a dark southern view of Indian rights—an amoral world where aboriginal affairs are governed exclusively by the states without federal interference, in which Indians are an underclass; a place where treaties are void and tribes hold no political, property, or human rights.”

Wirt appealed to Chief Justice John Marshall who granted a writ of error and ordered the state to appear before the Supreme Court in Washington. Instead of complying, The Georgia legislature was called into special session and voted to defy the writ and to hang Corn Tassel. Governor Gilmor told the legislature that the Supreme Court had no jurisdiction to intrude on Georgia and he promised to disregard orders from the Court. Walter Echo-Hawk reports:

“Since Corn Tassels’s appeal to the United States Supreme Court had been granted, his execution should have been stayed. However, defiant and fearful Georgia could never allow the high court to review the state’s spurious race laws.”

Two days later Corn Tassel was hung. Walter Echo-Hawk reports:

“Corn Tassels had to die posthaste so Georgia could safely evade federal judicial review and continue its repugnant policies without outside interference from Washington do-gooders.”

The United States bought Alaska from the Russians in 1867. The Russians had never attempted to force the Alaska natives to recognize Russian ownership, nor had they made any treaties with the natives, nor had they purchased any land from the natives. The Russians had never had any effective control over the natives and the total Russian population in Alaska was less than 800, living in four very heavily fortified towns. In the transaction, the natives were barely mentioned and there was more concern for the protection of those Russians who might want to remain.

The Tlingit watched the ceremonial transfer from Russia to the United States at New Archangel (present-day Sitka) with great interest. Since Indians were not allowed in town, the Tlingit watched from their canoes in the harbor.

Under an international law known as the Discovery Doctrine, the Indian nations of Alaska had no say in this transfer. The Discovery Doctrine, which currently forms the basis of American Indian law, says that Christian nations, such as the United States, have a right to govern all non-Christian nations. Thus, the United States ignored not only the sovereignty of Indian nations, but also the rights of these nations to access the resources on the lands and seas which they had traditionally used.

At the time the United States took over Alaska there were an estimated 31,000 Natives in the territory and about 300 non-Indians, most of whom lived in what would become Sitka. The Americans were more concerned with the rights of the non-Indians than with those of the Indians.

In 1884, Congress passed the Alaska Organic Act which specified that native use of the land would not be disturbed, but it did not give them title to the land. It was the feeling of Congress that this Act was needed for the development of Alaska’s extensive resources, including mineral rights and timber.

Following World War II, the United States entered into a period in which a great deal of timber was needed to provide the lumber for the houses which were being built. To provide timber for the housing boom, the United States Department of Agriculture authorized timber harvest on the Tongass National Forest in Alaska. There was neither concern nor acknowledgement that the timber which was harvested was on lands which were traditionally claimed by the Tee-Hit-Ton, a subgroup of the Tlingit.

The Tee-Hit-Ton brought action in the Court of Claims for compensation under the Fifth Amendment for timber taken from tribal lands. The tribe argued that it had full proprietary ownership of the timber. The federal government, on the other hand, asserted that if the Tee-Hit-Ton had any rights at all, they were to use the land at the government’s will.

The Court of Claims found that the Tee-Hit-Ton were an identifiable group residing in Alaska and that its interests in lands prior to the purchase of Alaska by the United States were “original Indian title.” Since Congress didn’t recognize the tribe’s legal rights regarding property ownership, the Court dismissed the case.

In 1954, the United States Supreme Court heard arguments in the Tee-Hit-Ton case. The government argued that under international law Christian nations can acquire lands occupied by heathens and infidels. It was an argument made by the United States government on the basis of the Christian religion. In their argument, the United States government not only cited the nineteenth century case of Johnson v M’Intosh, but also the Papal bulls of the fifteenth century and the Old Testament from the Bible.

In 1955, the Supreme Court announced its decision which denied the Tee-Hit-Ton any compensation for the taking of the timber. According to the Court:

“The Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant Christian monarchs the right to acquire territory in the possession of heathens and infidels.”

The Supreme Court denied compensation and asserted:

“No case in this Court has ever held that taking of Indian title or use by Congress required compensation.”

In order to be compensated under the Fifth Amendment, the tribe would have needed some prior acknowledgement of land ownership through a treaty, a statute, or an executive order. The Alaska Organic Act did not recognize aboriginal land ownership.

In its finding, the Court views the Indians as nomads who have not developed the land:

“The Tee-Hit-Tom were in a hunting and fishing stage of civilization, with shelters fitted to their environment, and claims to rights to use identified territory for these activities as well as the gathering of wild products of the earth.”

The Tee-Hit-Ton case reaffirmed the Discovery Doctrine as the basis for U.S. law with regard to Indian nations. It reaffirmed this Christian doctrine as the principle to be used in judging American Indians and discounted American Indian history and religious traditions. While denying that Indians have any legal rights as pagan nations, the Court also stated:

The American people have compassion for the descendants of those Indians who were deprived of their homes and hunting grounds by the drive of civilization. They seek to have the Indians share the benefits of our society as citizens of this Nation. Generous provision has been willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability.

European nations assumed that they had a right to govern the Indian nations they encountered. This right stemmed from the legal and religious Doctrine of Discovery which declares that Christian nations have a right, if not an obligation, to govern all non-Christian nations. Once an Indian nation had been read the Christian history of the world, even though it might be read to them in a language they did not understand, then they were obligated to be ruled by the superior Christian nation.

The Catholic Pope in 1452 laid the foundation for the Doctrine of Discovery by issuing the papal bull dum diversas which instructed the Portuguese monarchy:

“to invade, capture, vanquish, and subdue all Saracens, pagans, and other enemies of Christ, to put them into perpetual slavery, and to take away all their possessions and property.”

A papal bull is a special kind of patent or charter issued by a pope. It is called a “bull” because of the seal (bulla) which was appended to the end of it and served to authenticate the document.

The Doctrine of Discovery provided Europeans with what they viewed as the legal right to claim the Americas. Europeans felt that while non-Christian Indian nations owned the land, the European nations, as Christian nations, had the right to rule Indian nations. If the Indian nations failed to recognize this right, then the Christian nations could wage a just war against them.

In 1513, the Doctrine of Discovery was formalized by the Spanish in a document called the “Requirement”. The “requirement” or “requerimento” was drawn up by Palacios Rubios, Spain’s master jurist, and provided the legal basis for the Spanish conquest of the Americas. All Spanish expeditions were required to carry a copy of the document. In the document, King Ferdinand told Native Americans that God had declared that the Pope rules all people, regardless of their law, sect, or belief. This included Christians, Moors, Jews, Gentiles, or any other sect. He asked that the Native Americans come forward of their own free will to convert to Catholicism or

“with the help of God we shall use force against you, declaring war upon you from all sides and with all possible means, and we shall bind you to the yoke of the Church and Their Highnesses; we shall enslave your persons, wives, and sons, sell you or dispose of you as the King sees fit; we shall seize your possessions and harm you as much as we can as disobedient and resisting vassals.”

Furthermore, the Natives who resist are to be held guilty of all resulting deaths and injuries.

Upon contacting an Indian village, the Spanish conquistadores would read the ‘Requirement’ which recited the history of the world as they knew it, from the Garden of Eden to the recent discovery. It did not make any difference that the natives might not understand Spanish or Latin, or that they might have their own history of the world. Once the word of the Spanish god was revealed, a just war could be waged on those who rejected it.

The idea of a “just war” was based upon the word of Saint Augustine. Under this concept, a just war was one that was waged to right an injustice or wrong by another nation. One of these wrongs, according to the Christian view, was not being Christian. Thus, if an Indian nation were to fail to let missionaries live and preach among them, then they were committing a “wrong” which would have to be set right through a “just war.”

The Doctrine of Discovery entered into American jurisprudence in 1823 when the Supreme Court ruled on Johnson and Graham’s Lessee versus McIntosh. The Court found that the Doctrine of Discovery gave sovereignty of Indian lands to England and then to the United States. Indian nations, under this Doctrine, have a right of occupancy to the land. Christian nations, such as England and the United States, have superior rights over the inferior culture and inferior religion of the Indians. According to the Court, Indians have been compensated for their lands by having the gift of Christianity bestowed upon them.

In 2005, the Supreme Court once again cited the Discovery Doctrine in City of Sherrill v Oneida Indian Nation of New York.

In 2009, Onondaga Chief Oren Lyons asked Pope Benedict XVI to renounce the Doctrine of Discovery. The Pope declined. On numerous other occasions, Indian leaders in the Americas have formally asked the Pope to renounce the Doctrine of Discovery. At the present time, it would appear that this is still the policy of the Catholic Church and is a part of American law.

The Episcopal Church adopted a resolution in 2009 repudiating the Doctrine of Discovery. The resolution called on the United States to review its historical and contemporary policies that contributed to the continued colonization of native peoples. The resolution also called for Queen Elizabeth II to repudiate publicly the validity of the Doctrine of Discovery.

During its 2000 Term, the United States Supreme Court issued two devastating Indian law opinions: Atkinson Trading Co. v. Shirley (Tribes lack authority to tax non-Indian businesses within their reservations) and Nevada v. Hicks (Tribal Courts lack jurisdiction to hear cases brought by tribal members against non-Indians for harm done on trust lands within their reservations). These opinions were devastating in that they struck crippling blows to tribal sovereignty and tribal jurisdiction — the most fundamental elements of continued tribal existence. These losses were indicative of the Court’s steady departure from the longstanding, established principles of Indian law and were among a string of losses suffered by Indian tribes over the past two decades.

In response, in September 2001, Tribal Leaders met in Washington, D.C., and established the Tribal Supreme Court Project (Project) as part of the Tribal Sovereignty Protection Initiative. The purpose of the Project is to strengthen tribal advocacy before the U.S. Supreme Court by developing new litigation strategies and coordinating tribal legal resources, and to ultimately improve the win-loss record of Indian tribes. The Project is staffed by attorneys with the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI) and consists of a Working Group of over 200 attorneys and academics from around the nation who specialize in Indian law and other areas of law that impact Indian cases, including property law, trust law and Supreme Court practice. In addition, an Advisory Board of Tribal Leaders assists the Project by providing the necessary political and tribal perspective to the legal and academic expertise.

Please help the Native American Rights Fund celebrate their 40th anniversary and continue their vital work in the coming years.